Procedural change to ease DOJ warrants in criminal hacking probes to go into effect

Capitol Building

30 November 2016. By Leah Nylen.

A procedural rule change that would make it easier for federal prosecutors to obtain warrants in criminal hacking investigations is set to go into effect at midnight after Republicans in the US Senate blocked a last-ditch effort to delay the revision.

In May, the US Supreme Court submitted to Congress proposed changes to the Federal Rules of Criminal Procedure after a years-long revision process. One of the new rules, Rule 41, would allow prosecutors to apply to a single federal judge for a warrant in cases where computers are located in more than five judicial districts. Under the current rules, prosecutors would need a warrant from each affected district.

The rules will go into effect on Dec. 1 unless Congress objects.

Various Internet groups, including the Electronic Frontier Foundation and CCIA, expressed concerns about the rule, saying it would substantively expand the government’s ability to conduct electronic searches.

On Wednesday, Democratic Senators Ron Wyden and Christopher Coons sought to use a procedural move to immediately offer three bills on the Senate floor that would have blocked the rule change or delayed it until next year.

“This rule change would give the government unprecedented authority to hack into Americans’ personal phones, their computers and their devices,” Wyden said. “Generally changes to the Federal Rules of Procedure are designed for modest, almost housekeeping kinds of procedural changes, not major shifts in policies.”

John Cornyn, the No. 2 Republican in the Senate, however, objected to the motions, effectively scuttling their efforts. Prosecutors will still need to obtain warrants before a judge, and abide by the Fourth Amendment, which protects against unreasonable search and seizure, he said.

“I think their concerns are misplaced,” Cornyn said of the objections by Wyden and Coons. “Federal Rule of Criminal Procedure 41 has already been the subject of a lengthy three-year process of thoughtful input, public hearing and deliberation. …That ought to allay their concerns that this is somehow an unthought-through or hasty rule that’s going to have unintended consequences.”

The Justice Department, which has pushed for the rule change, has argued that the revisions are necessary to keep up with the times and help investigations proceed more quickly and efficiently.

“We believe technology should not create a lawless zone merely because a procedural rule has not kept up with the times,” Leslie Caldwell, the DOJ’s assistant attorney general for criminal enforcement, said in a blog post last week about the rule change. “The amendments do not create any new law enforcement authority, or make any change to what constitutes a crime or what must be shown to a court in order to investigate crime. Nor do they change in any way the traditional protections under the Fourth Amendment, such as the requirement that investigators establish probable cause before each search. They simply do what the Rules were always intended to do: identify a judge who can consider whether to grant or deny a warrant application.”

In May, Wyden and Republican Senator Rand Paul introduced legislation that would block the rule change from taking effect. Coons and Republican Steve Daines also offered similar measures. The bills languished in committee, however, without being considered, leading to the last-ditch effort Wednesday.

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